Regulating water intake structures

Section 316(b) of the federal Clean Water Act requires, and Section 283.31(6), Wisconsin Statutes, allows the department to require that the location, design, construction and capacity of cooling water intake structures reflect the best technology available (BTA) for minimizing adverse environmental impact. The department’s authority to regulate intake structures is tied to the issuance of Wisconsin Pollutant Discharge Elimination System (WPDES) permits and is found in s. 283.31(6), Wis. Stats:

Any permit issued by the department under this chapter which by its terms limits the discharge of one or more pollutants into the waters of the state may require that the location, design, construction and capacity of water intake structures reflect the best technology available for minimizing adverse environmental impact.

Federal implementation

For many years, federal 316(b) regulations were implemented without specific standards in place, on a resource-intensive, site-by-site basis.

Phase I

In 1995 the EPA entered into a consent decree following a lawsuit by Riverkeeper et al, which required final action on regulations in three phases. In 2001, USEPA published Phase I covering new facilities. This rule was challenged and in 2004, the courts upheld the entire rule except for provisions allowing restoration to be used to meet the requirements of the rule.

Phase II

In 2004 the EPA published Phase II, applicable only to existing power plants with a design intake flow >50 MGD. This rule was challenged and in 2008, the 2nd Circuit remanded numerous parts (restoration, cost-benefit, performance ranges, etc.). In 2009, the Supreme Court agreed to review only the cost-benefit provisions and determined that it is permissible under section 316(b) to consider costs and benefits in determining BTA. The Supreme Court then remanded the rule to the 2nd Circuit and USEPA asked that the entire rule be returned to the agency so that it could address the list of issues remanded by the courts.

Phase III

In 2006 the EPA published the Phase III rule. Phase III established 316(b) requirements for new offshore oil and gas extraction facilities and stated that all other existing facilities (power plants <50 MGD and manufacturing facilities) would have BTA established on a case-by-case basis using best professional judgment (BPJ). The rule was challenged and in July 2010, the courts remanded the existing facility portion of the rule back to USEPA for further rulemaking.

2014 rule

In 2014, the EPA completed a new final rule to establish requirements under section 316(b) for all existing facilities that withdraw > 2 MGD and use at least 25% of that water exclusively for cooling purposes (79 FR 48300, August 15, 2014). As before, the rule establishes national requirements for the location, design, construction, and capacity of cooling water intake structures by setting requirements that reflect BTA for minimizing adverse environmental impact and must be implemented through NPDES permits. The 2014 rule became effective on October 14, 2014.

Implementing 316(b) in Wisconsin

Since the federal regulations for 316(b) were promulgated in 2014, the DNR is required to determine whether cooling water intake structures meet federal standards for best technology available at each reissuance of a WPDES permit. The DNR has initiated rulemaking that proposes to incorporate the federal regulations into state administrative code. (See WY-19-14 on the proposed NR rules site for more information about these proposed rules.) The guidance provided at the link below is intended to help staff and permittees to understand the federal regulations for both new and existing facilities and how they apply to WPDES permittees, to help permittees determine what steps are needed to comply with federal regulations, and to explain how staff and permittees can decide whether intake structures meet best technology available (BTA) requirements in the interim until state rules can be adopted to include intake structure requirements.